8th Circuit: Woman can challenge law school’s hiring decision

Reversing a federal trial court, the 8th U.S. Circuit Court of Appeals has held that a rejected applicant for a legal-writing instructor position can proceed with her claim that the law school violated her First Amendment rights by basing its hiring decision on her political beliefs.

The applicant, Teresa Wagner, sued Carolyn Jones, then the dean of the University of Iowa College of Law, after Jones did not hire her for several legal-writing positions. According to Wagner, Jones refused to hire her because Wagner actively advocates for socially conservative positions, including anti-abortion causes.

The trial court granted Jones summary judgment, holding that she enjoyed qualified immunity for her hiring decisions because she reasonably believed her actions complied with the law. On Dec. 28, in Wagner v. Jones, the 8th Circuit reversed, holding that Wagner presented enough evidence of political discrimination to be allowed to proceed to trial.

Wagner, a graduate of the Iowa law school and a former legal-writing instructor at George Mason University School of Law, first applied for an instructor position at Iowa in October 2006. At the time, Wagner worked part-time in the university’s writing center. On her resume, Wagner listed her work with the National Right to Life Committee and the Family Research Council.

Fifty candidates applied for the position, and Wagner ultimately was one of three candidates selected for a full-day interview. Before that interview, an associate dean suggested to Wagner that she not disclose during the interview that she previously had been offered a position at Ave Maria School of Law, explaining that Ave Maria is viewed as a conservative school.

The University of Iowa law school, on the other hand, is viewed as being liberal, with only one of its 50 professors being a registered Republican.

As part of the full-day interview, Wagner presented to the full faculty and met with several students. After her presentation, several faculty members sent e-mails recommending her hiring, and the students gave Wagner the highest possible ratings.

During a subsequent full faculty meeting with Jones, however, the faculty recommended a different candidate and that Jones not fill a second legal-writing instructor opening. The candidate recommended was politically liberal and had no teaching experience.

After the meeting, an associate dean and others urged Jones to consider Wagner for an adjunct legal-writing position. Despite a unanimous recommendation from the committee considering applicants for that position, Wagner did not even receive an interview. The associate dean said that Professor Randall Bezanson — a vocal supporter of abortion rights — had been the primary opponent to Wagner’s hiring.

While Jones later testified that she always followed the faculty’s recommendation in hiring matters, she acknowledged that she had the authority to reject that recommendation.

Considering all of this evidence, the appellate court held that Wagner had presented ample evidence of political discrimination.

Citing the U.S. Supreme Court’s 1990 decision in Rutan v. Republican Party of Illinois, the 8th Circuit noted that “the First Amendment prohibits a state from basing hiring decisions on political beliefs or associations with limited exceptions for policymaking and confidential positions.”

Moreover, the courtheld, Wagner did not need to prove that her political beliefs were the sole reason Jones did not hire her, only that those beliefs were a “substantial or motivating factor” in Jones’ decision. Under that standard, the court said, it was clear that Wagner had presented enough evidence to entitle her to proceed to trial.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

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The First Amendment to the U.S. Constitution – the cornerstone of American democracy – is the focus of the National First Amendment Moot Court Competition. Recognized as one of the nation's finest constitutional-law competitions, this annual event features a current First Amendment controversy.

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